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[2014] ZALCCT 68
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SA Metal Group (Pty) Ltd v Commission for Conciliation Mediation And Arbitration and Others (C350/13) [2014] ZALCCT 68; (2014) 35 ILJ 2848 (LC) (15 April 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Case
no: C350/13
DATE:
15 APRIL 2015
Reportable
In
the matter between:
SA
METAL GROUP (PTY)
LTD
............................................................................................
Applicant
And
COMMISSION
FOR CONCILIATION MEDIATION
AND
ARBITRATION
.................................................................................................
First
Respondent
STEPHEN
BHANA
NO
..........................................................................................
Second
Respondent
JAMES
BEASLEY
.....................................................................................................
Third
Respondent
Date
heard: 27 November 2013
Date
delivered: 15 April 2014
Summary:
Review of an arbitration award; Commissioner’s failure to take
into account code of good practice on sexual harassment
in the
workplace
JUDGMENT
Rabkin-Naicker
J
[1] The applicant
company seeks an order in terms of section 145 of the LRA reviewing
and/or setting aside and/or substituting the
arbitration award under
case number WEECT 20103 – 12 dated 25 March 2013. The main
focus of this review application is the
correct legal approach to be
taken to the assessment of factual evidence in sexual harassment
cases. Further issues raised on behalf
of the applicant in respect of
the reviewability of the award is the alleged failure of the first
respondent (the Commissioner)
to make any finding on one of the
charges against third respondent (Beasley), and the manner in which
the Commissioner determined
compensation.
[2] On the 12
December 2012, Beasley, a divisional director of the applicant
company, was charged with sexual harassment of a subordinate
female
staff member, Linn Ajamdien (the complainant). Beasley was found
guilty on 14 December 2012 by the chairperson of an internal
disciplinary hearing. At arbitration, the Commissioner found that
Beasley's dismissal was substantively unfair and ordered the
applicant company to pay him eight months‟ compensation in the
sum of R864,000.00.
[3] The following
paragraphs of the award are particularly relevant to a consideration
of the review application:
“
57.
In casu the allegations of sexual harassment contain 3 distinct
elements namely verbal/written banter, hugging and kissing.
I will
deal with each of them seriatum.
58.
The
verbal/written banter allegedly started with the comment about Linn's
shoes. It is undisputed that Beasley made a comment about
her shoes
on 1 June in his e-mail which read, as PS, “ love to the
shoes". Linn responded to the comment in a light-hearted
manner
with thank you… My feet felt beautiful LOL". According to
Linn this was the start of the sexual harassment.
Further mentioning
of the shoes was met in a similar fashion. Linn admitted that she
appreciated the comment. Another example highlighted
by Linn was
Beasley's invitation to Linn to join "us" (my emphasis) for
lunch to which Linn replied she would have loved
to but can't eat ham
otherwise she would be unable to go home. This elicited a reply from
Beasley that she could come to his house
if she's "skopped out”.
In another instance Beasley invited Linn for roti and curry lunch at
work to which she replied
that it seemed "Lekker”
but
she had a meeting scheduled. Other examples of alleged sexual
innuendo highlighted by then was Beazley's question if she was
offering to come and play with him after she suggested he plays
Monopoly to relieve his boredom whilst on sick leave. Her response
at
the time was "I wish!".
59.
At
no point did Linn make Beasley aware that this banter was unwelcome;
in fact her responses seemed to indicate that she was quite
comfortable with it and participated willingly therein. She also
initiated closer contact with him after the August meeting by
sending
him the "Little Love" card for his birthday. None of the
evidence presented in respect of the communication between
Beasley
and Linn contained any explicit sexual connotation. It appeared that
Linn attached a subjective sexual interpretation to
it to support her
testimony in the arbitration, given that only the Whatsapp messages
were mentioned in the disciplinary enquiry.
60.
Linn
testified that when she first saw Beasley hug her colleague she knew
she would be uncomfortable with it. It is common cause
that Beasley
did not hug her from the start. Their versions of when the hugging
started differ diametrically. It is undisputed
that Beasley hugged
other females including the HR manager and Gangen.
Gangen’s
testimony that Linn willingly hugged Beasley in her and Granger’s
presence stands unchallenged. On Linn's own
version, she hugged
Beasley when he finally came back to their offices and hugged
everyone except her. She did not highlight the
last hug in November
is being unwanted either. It was agreed that after the August meeting
there was no physical contact between
Linn and Beasley. In light of
her own evidence that thereafter she hugged Beasley first, I fail to
see how she could have regarded
the hug shortly thereafter in
November as sexual harassment. There is no evidence that Linn every
informed Beasley that hugging
was unwelcome which lends credence to
his testimony that it was the norm between them.
61.
The
most serious and the most contentious element is that kissing. Linn
indicated that Beasley kissed her on three occasions, once
in August
on her cheek, once on her mouth trying to get his tongue inside her
mouth (also in August) and the last kiss on the cheek
in November. It
is common cause that Linn addressed the second August kiss with
Beasley in a meeting between them. At no point
did they agree that
the case was as described by Linn. There was no focus in the evidence
that the first kiss on the cheek was
ever addressed. On Linn's own
version she elected not to mention it to Beasley or anyone else. The
last alleged kiss on the cheek
was hotly denied by Beasley. Beasley's
counter version that they kissed numerous times when they greeted at
Linn's instigation
was also disputed although it was consistent with
his testimony in the enquiry. In essence it is very difficult to
determine whether
the last kiss in November occurred or not. One
needs to assess the credibility of the two persons to arrive at a
probable conclusion.
62.
Both
Linn and Beasley became emotional at some point during their
testimonies. Linn however was very articulate and insistent in
her
testimony, like a person who was well prepared. What was worrying
about her version is her very subjective interpretation of
events and
communications. She assigned sexual meanings to statements of
questions which were at best open to wide interpretations
and in a
narrow sense had to be evaluated within the particular context. This,
in light of Borain’s testimony, could be a
form of hyper
vigilance and sensitivity given Linn's past experience of sexual
abuse. Another problem with Linn's version is her
admitted election
not to report these alleged instances of harassment. As HR specialist
practitioner, she had direct access to
and was in fact a custodian of
the respondent's policies and procedures. She reported to the HR
manager, also a woman, who described
herself as tough. Yet to Linn
did not report any of these events/instances to Opperman or what
anyone else. On her own version,
Beasley is waving his hand in front
of her face was the straw that broke the camel's back. She failed to
explain how this was part
of the sexual harassment. She was a less
credible witness than Beasley.
63.
Beasley on the other hand could not be shaken during cross-
examination.
He admitted that there was kissing in general but that it was
consensual and all of it prior to the August meeting.
He vehemently
denied the alleged tongue kiss in August as well as the cheek case in
November. His version that Linn willingly hugged
him and brought
coffee and muffins to their meetings was supported by his witnesses,
both of whom appeared to be credible. It is
common cause that he
apologised in August for making Linn feel uncomfortable and again in
November and had in fact suggested, nay
insisted, that they deal with
the matter in Opperman's presence. It was undisputed that he and Linn
had travelled to Saldanha and
Hout Bay without out any incidents. In
comparing these two key witnesses I therefore find Beasley's version
more probable than
that of Linn.
64.
I
have already alluded to the improbability that the hugging and banter
constituted sexual harassment as Beasley was never made
aware that it
was unwelcome, unwanted war offensive. The August incidents were
dealt with by Linn and Beasley and laid to rest
on their versions,
was not repeated and therefore becomes immaterial. The last incident
remains unproven. In essence then the respondent
had failed to prove
the applicant's guilt on the balance of probabilities. It had failed
to prove that the behaviour which the
applicant deemed unwanted was
persistent.”
[4] It is submitted
on behalf of the applicant company that the following aspects of the
findings reflected above are particularly
significant:
4.1 The Commissioner
found that none of the evidence presented in respect of the
communication between the complainant and Beasley
contained any
explicit sexual connotation. He also found that the sexual
connotation given to it by the complainant was purely
subjective and
that the sexual connotations attributed to his communications were
nothing more than views that she had developed
after the fact - the
complainant had done this to bolster her evidence in the arbitration.
Elsewhere in his findings it is moreover
suggested by the
Commissioner that she was coached to do so.
4.2 The Commissioner
found that the particular nature of her testimony was suspicious and
that this articulate testimony accordingly
impacted on her
credibility as a witness – he noted that in his view she
assigned sexual meanings when none were present
and that this may
also be explained by her past experience of sexual abuse.
4.3 The Commissioner
found that Beasley's denial of the tongue kiss in August and
the cheek kissing November, must be accepted
because Beasley was a
credible witness and the complainant was not.
4.4 In the view of
the Commissioner, particularly telling was her failure to make it
explicit to Beasley that the hugging and banter
constituted sexual
harassment as in her view, they were unwelcome, unwanted or
offensive, this is especially so given that she
was an HR specialist.
Grounds
of Review
[5] The grounds of
review submitted on behalf of the applicant company are the
following:
5.1 there is no
rational basis to justify the conclusion that there was no sexual
connotation contained in the messages sent by
Beasley to the
complainant;
5.2 the Commissioner
failed properly to apply his mind to the material facts;
5.3 the Commissioner
failed have adequate regard to the relevant legal principles relating
to the strictures placed on the permissible
conduct of the director
in his interactions with members of the opposite sex, particularly
having regard to the substantial power
imbalance between the two
parties;
5.4 the Commissioner
failed have adequate regard to the obligation placed on persons in
authority to refrain from any conduct that
could contribute to a
hostile work environment;
5.5 the finding that
the claimant was not a credible witness is not supported by the
evidence;
5.6 the finding that
the disciplinary proceedings against Beasley were actuated by an
ulterior motive is unsupported by the evidence;
5.7 the Commissioner
failed to make findings on all of the charges; and
5.8 the Commissioner
reached decisions that a reasonable decision maker could not reach.
[6] The submissions
on behalf of the applicant proceed to deal extensively with the test
for sexual harassment in our case law and
in particular the 2005 Code
of Good practice on the handling of sexual harassment cases (the 2005
code). International jurisprudence
including the Australian code of
good practice on sexual harassment is referred to.
Evaluation
[7] The critical
issue to be examined on the basis of the approach taken by the
applicant in this review, is to answer the following
question: Where
a Commissioner fails to be guided by the 2005 Code in his treatment
of the evidence in an arbitration which deals
with sexual harassment,
does this render his award susceptible to review?
[8] Section 138(6)
of the LRA provides that:
“
(6)
The commissioner must take into account any code of good practice
that has been issued by NEDLAC or guidelines published by
the
Commission in accordance with the provisions of this Act that is
relevant to a matter being considered in the arbitration
proceedings.”
[9]
In the
award in question, the Commissioner does refer to a Code in that he
quotes the definitions of „sexual harassment‟
and „forms
of sexual harassment in the Code‟. As I deal with later in this
judgment, he does not quote the amended
2005 Code
[1]
correctly when he sets out the definitions of sexual harassment. In
addition, the provisions of the 2005 Code that should inform
any
arbitrator dealing with a matter such as that before the Commissioner
are set out in the following clauses:
“
4
Test for Sexual Harassment
Sexual
harassment is unwelcome conduct of a sexual nature that violates the
rights of an employee and constitutes a barrier to equity
in the
workplace, taking into account all of the following factors:
4.1
whether the harassment is on the prohibited grounds of sex
and/or gender and/or sexual orientation;
4.2
whether the sexual conduct was unwelcome;
4.3
the
nature and extent of the sexual conduct; and
4.4
the
impact of the sexual conduct on the employee.
5
Factors to establish sexual harassment
5.1
Harassment on a prohibited ground
5.1.1
The
grounds of discrimination to establish sexual harassment are sex,
gender and sexual orientation.
5.1.2
Same-sex harassment can amount to discrimination on the basis
of sex, gender and sexual orientation.
5.2
Unwelcome conduct
5.2.1
There are different ways in which an employee may indicate
that sexual conduct is unwelcome, including non-verbal conduct such
as
walking away or not responding to the perpetrator.
5.2.2
Previous consensual participation in sexual conduct does not
necessarily mean that the conduct continues to be welcome.
5.2.3
Where a complainant has difficulty indicating to the
perpetrator that the conduct is unwelcome, such complainant may seek
the assistance
and intervention of another person such as a
co-worker, superior, counsellor, human resource official, family
member or friend.
5.3
Nature and extent of the conduct
5.3.1 The
unwelcome conduct must be of a sexual nature, and includes physical,
verbal or non-verbal conduct.
5.3.1.1
Physical conduct of a sexual nature includes all unwelcome
physical contact, ranging from touching to sexual assault and rape,
as
well as strip search by or in the presence of the opposite sex.
5.3.1.2
Verbal conduct includes unwelcome innuendos, suggestions,
hints, sexual advances, comments with sexual overtones, sex-related
jokes
or insults, graphic comments about a person's body made in
their presence or to them, inappropriate enquiries about a person's
sex life, whistling of a sexual nature and the sending by electronic
means or otherwise of sexually explicit text.
5.3.1.3
Non-verbal conduct includes unwelcome gestures, indecent
exposure and the display or sending by electronic means or otherwise
of
sexually explicit pictures or objects.
5.3.2 Sexual
harassment may include, but is not limited to, victimization, quid
pro quo harassment and sexual favouritism.
5.3.2.1
Victimization occurs where an employee is victimized or intimidated
for failing to submit to sexual advances.
5.2.3.2
Quid pro quo harassment occurs where a person such as an owner,
employer, supervisor, member of management or co-employee,
influences
or attempts to influence an employee's employment circumstances (for
example engagement, promotion, training, discipline,
dismissal,
salary increments or other benefits) by coercing or attempting to
coerce an employee to surrender to sexual advances.
This could
include sexual favouritism, which occurs where a person in authority
in the workplace rewards only those who respond
to his or her sexual
advances.
5.3.3
A single incident of unwelcome sexual conduct may constitute sexual
harassment.
5.4
Impact of the conduct
The
conduct should constitute an impairment of the employee's dignity,
taking into account:
5.4.1
the
circumstances of the employee; and
5.4.2
the
respective positions of the employee and the perpetrator in the
workplace.”
[10] It is settled
law as the jurisprudence stands presently, that the making of award
by a CCMA Commissioner constitutes administrative
decisionmaking
2
.
The administrator qua Commissioner is enjoined by the empowering
statute, in this case the LRA and in particular section 186(6)
of
that Act, to apply a code such as the 2005 Code when presiding over
and making a decision in arbitration proceedings. It is
noteworthy
that the 2005 Code specifically provides as follows:
“
11.4
CCMA commissioners should receive specialized training to deal with
sexual harassment cases.”
[11] It is
peremptory then for a commissioner to apply the 2005 Code when they
preside over arbitrations dealing with dismissals
for alleged
misconduct, in which alleged acts of sexual harassment constitute the
said misconduct. This type of case rather
than "unfair
discrimination" matters is what CCMA commissioners in the main
deal with. I now turn to consider whether
the Commissioner did take
the 2005 Code into account in this matter.
[12] In his analysis
of whether there was sexual conduct or not the Commissioner finds
that “none of the evidence presented
in respect of the
communication between Beasley and Linn contained any explicit sexual
connotation" and that the complainant's
views to the contrary
were “purely subjective". In so doing the Commissioner
failed to have adequate or any regard
to the relevant portions of the
2005 code which makes it explicit that “unwelcome innuendo,
suggestions and hints" suffice
for purposes of the definition of
verbal sexual harassment. The Code does not require communication to
include an “explicit"
sexual connotation.
[13] It is submitted
on behalf of the applicant company that the following comments
e-mailed by Beasley to the complainant must
be considered in light of
the provisions of the Code, as remarks of a sexual nature. These
included comments like "can't wait
for summer to see you strut
your stuff;" "listen, we had better stop “shoe
flirting" before we get into trouble
with my other
girlfriends."; "We are going to get into trouble for
flirting hey. Watch it it's
Lekka”; "it's
okay you can come to my house tonight if you get skopped out.";
“
Are
you offering to come play with me?". Further it is submitted
that Beasley would not be telling someone at work in whom
he had no
sexual interest that he had a dream about her and that the dream had
been “hectic”.
[14] The
Commissioner drew a negative inference from the passive coping
strategies of the complainant and made a credibility finding
against
her on the basis that she ought to have made it explicit to Beasley
that the banter and hugging constituted sexual harassment
in her view
– particularly as she was an HR practitioner. The 2005 code
includes a guideline as to how the reporting of sexual
harassment by
an employee should be gauged. Reference is made to Section 61 of the
Employment Equity Act which requires that conduct
in contravention of
that act must immediately be brought to the attention of the employer
and reads as follows:
"in
instances of sexual harassment, the word “ immediately"
shall mean, as soon as is reasonably possible in the
circumstances
and with out undue delay, taking into account the nature of sexual
harassment, including that it is a sensitive issue,
that the
complainant may fear reprisals and the relative positions of the
complainant and the alleged perpetrator in the workplace."
[15]
It is
apparent on the face of the award in question that the Commissioner
failed to have adequate regard to the power imbalances
between the
complainant and Beasley and her explanation in the arbitration that
she failed to report the harassment earlier, as
she was trying to
ensure that she preserved her position as a newcomer in the
applicant's employ. In
Gaga
v Anglo Platinum Ltd and others
[2]
Murphy J held as follows:
"the
rule against sexual harassment targets, amongst other things,
reprehensible expressions of misplaced authority by superiors
towards
their subordinates. The fact that the subordinate may present as
ambivalent, or even momentarily be flattered by the attention,
is no
excuse; particularly where at some stage in an ongoing situation she
signals her discomfort. If not the initial behaviour,
then, at the
very least, the persistence therein is unacceptable."
[16] I must agree
with the submissions made on behalf the applicant company that the
Commissioner ought to have considered that
the behaviour and
attention directed at the complainant by Beasley was inappropriate.
The Commissioner does not seem to have taken
into account that
Beasley had an obligation placed on him in his senior managerial
position to refrain from any conduct which would
contribute to a
hostile work environment. This obligation became stronger in
circumstances where the complainant signaled her discomfort
and
advised Beasley in August that contact was unwelcome. On Beasley's
version of what happened on 26 November, he did hug the
complainant
(but denied kissing her). This evidence of should have been weighed
taking the provisions of the 2005 Code into consideration.
It was
not.
[17] It is
concerning that the Commissioner in his assessment of the
"credibility" of the complainant and the alleged
perpetrator, includes the comment that the complainant "however
was very articulate and insistent in her testimony, like a
person who
was well prepared. She assigned sexual meanings to statements and
versions which were at best open to wide interpretation…"
The Commissioner also appears to doubt her credibility based on the
fact that as a HR specialist that knew about the sexual harassment
policies of the employer, she failed to complain about the conduct at
the time that it happened and then claimed at the arbitration
that
she viewed the same conduct as constituting sexual harassment.
[18] It would seem
to me that where an alleged victim of sexual harassment has been
empowered to present her evidence in a manner
that reflects she is
well prepared, this should not be a relevant consideration in
evaluating the credibility of such a witness.
The further reasoning
that if a person works in human resources, she should be expected to
take more immediate action in reporting
sexual harassment cannot be
considered a rational general proposition or relevant consideration
in a credibility finding. In this
case moreover it was common cause
that the complainant had made it clear to the company and to Beasley
that she had suffered sexual
abuse as a child.
[19]
A
further ground of review is contained in the applicant‟s papers
and that is that the Commissioner did not make findings
on the fourth
charge at the disciplinary hearing which was that Beasley was guilty
of “demonstrating judgment, not
befitting of the
divisional director of the company". It is submitted that even
if the Commissioner was of the view that Beasley
had not committed
sexual harassment he was still obliged during the de novo hearing at
arbitration to consider all the charges
for which the dismissed
employee had been found guilty, and yet he failed to do so. Reliance
is placed on the matter of
Dairy
Bell (Pty) Ltd versus Commission for Conciliation, Mediation and
Arbitration & others
[3]
in
which the court held that where there were several charges of
misconduct, each ought to be separately dealt with and the
arbitrator's
analysis and conclusion in relation to each count ought
to be clearly set out to meet the required standard of
justifiability.
Where in a case such as this a Commissioner is
required to take into account the 2005 Code and so should have been
alert to the
issue of the status of the respective parties in the
hierarchy of the company, the omission to make such a finding becomes
even
more problematic.
[20] The heads of
argument on behalf of Beasley include the submission that:
“Until such time as the alleged offender
is made aware that the
conduct is unwelcome there can be no sexual harassment. It was
therefore appropriate for the arbitrator
to distinguish the events
prior to the meeting at the end of August 2012 from the events
thereafter as the third respondent had
no indication prior to this
that his conduct may have been unwelcome." This proposition
cannot be sustained given the definition
of sexual harassment in the
2005 code:
“
(1)
Sexual harassment is unwanted conduct of a sexual nature. The
unwanted nature of sexual harassment distinguishes it from behaviour
that is welcome and mutual.
(2)
Sexual attention becomes sexual harassment if-
(a) the behaviour is
persisted in, although a single incident of harassment can constitute
sexual harassment;
and/or
(b) the recipient
has made it clear that the behaviour is considered offensive; and/or
(c)
the
perpetrator should have known that the behaviour is is regarded as
unacceptable.”
[4]
[21] A reading of
this definition makes it clear that such an assertion is
unsustainable. It is also important to note that the
definition as
recorded in the award did not include the words „
and/or
‟
between sub clauses (a) and (b) of the definition. Nor did it include
the phrase “
although a single incident of harassment can
constitute sexual harassment
”.
[22]
My
judgment is that this award is susceptible to review. The applicant
has, referring to the jurisprudence on the test for review
of awards
quoted the judgment of the Supreme Court of Appeal in
Herholdt
[5]
as
follows:
“
[25]
In summary, the position regarding the review of CCMA awards is this:
a review of a CCMA award is permissible if the defect
in the
proceedings falls within one of the grounds in s145 (2) (a) of the
LRA. For a defect in the conduct of the proceedings to
amount to a
gross irregularity as contemplated by sS 145 (2) (a) (ii), the
arbitrator must have misconceived the nature of the
enquiry or
arrived at an unreasonable result. A result will only be unreasonable
if it is one that a reasonable arbitrator could
not reach of all the
material that was before the arbitrator. Material errors of fact, as
well as the weight and relevance to be
attached to particular facts,
not in and of themselves sufficient for an award to be set aside, but
are only of any consequence
if there affect is to render the outcome
unreasonable."
[23]
Since
the above judgment was handed down there has been a further judgment
of consequence in the Labour Appeal Court in the matter
of
Goldfields
Mining South Africa (Pty) Ltd (Kloof Goldmine) versus CCMA and
others
,
[6]
in which the Labour Appeal Court summarised the questions a reviewing
court should ask in a matter such as the one before me as
follows:
“
The questions
to ask are these: (i) In terms of his or her duty to deal with the
matter with the minimum of legal formalities, did
the process that
the arbitrator employed give the parties a full opportunity to have
their say in respect of the dispute? (ii)
Did the arbitrator identify
the dispute he was required to arbitrate (this may in certain cases
only become clear after both parties
have led their evidence)? (iii)
Did the arbitrator understand the nature of the dispute he or she was
required to arbitrate? (iv)
Did he or she deal with the substantial
merits of the dispute? And (v) is the arbitrator‟s decision one
that another decision
maker could reasonably have arrived at based on
the evidence?"
[7]
[24] I return to the
question I raised regarding the duty imposed on the administrative
decision-maker qua Commissioner by section
138 (d) of the LRA to
apply the relevant code of good practice when he or she is
arbitrating a dispute. In my judgment a reviewing
court may treat the
omission to do so as a failure to understand the nature of the
dispute he or she was required to arbitrate.
On the
Herholdt
test, this would be characterized as a gross irregularity This is
particularly so in a matter which concerns alleged sexual harassment
where it is recognised that specific guidelines are necessary to
follow in order to treat the evidence appropriately. The inclusion
of
a clause in the Code requiring CCMA commissioners to be trained in
order to be skilled in dealing with these matters is pertinent.
[25] I find that the
failure to take proper account of the 2005 Code in dealing with the
evidence before him, led the Commissioner
to arrive at a result which
a reasonable decision maker could not make. The Commissioner
specifically failed to take the correct
definition of sexual
harassment as contained in the 2005 Code into account, and further
was not guided by the principles and guidelines
set out in that Code
when he evaluated the respective testimonies of the complainant, and
the alleged perpetrator. In addition,
he failed to deal with one of
the findings in the disciplinary hearing for which Beasley was
dismissed, as referred to above. I
am therefore going to rule that
the award should be reviewed and set aside.
[26] The question as
to whether this court should substitute its decision for that of the
Commissioner needs to be considered. I
see no point in referring the
matter back to the CCMA given that the complete record is before me.
I have no doubt that Beasley
was guilty of demonstrating judgment not
befitting of a divisional director of the company. And as the
chairperson of Beasley‟s
disciplinary hearing said in respect
of his engagement in inappropriate physical contact after the August
meeting: “The definition
of sexual harassment encompasses a
situation where there is persistence in unwanted physical contact of
any kind and Beasley‟s
conduct clearly meets this definition.”
The sanction of dismissal was fair in these circumstances.
[27] I do not
consider it apposite to make a costs order against Beasley for
opposing the review.
I therefore make the
following order:
1. The award made by
the second respondent acting under the auspices of the first
respondent, under case number W ECT 20103 –
12, dated 25 March
2013, is reviewed, set aside and substituted as follows:
2. “The
dismissal of James Beasley was substantively fair.”
Rabkin-Naicker
J
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant : C.S. Kahanovitz (SC) with M O‟Sullivan
instructed by Guy & Associates
For
the Third Respondent: L Myburgh instructed by Greenberg and
Associates
[1]
GenN 1357 GG 27865 4 August 2005
[2]
(2012) 33 ILG 329 (LAC)
[3]
(1999) 4 LLD 629 (LC)
[4]
Clause 4 of the 2005 Code
[5]
Herholdt v Nedbank Ltd (701/2012)
[2013] ZASCA 97
(5 September 2013)
[6]
(JA2/2012) [ZALAC] 28 (4.11.13]
[7]
JA2/2012 at paragraph 20